Media & Tort of Defamation

Freedom of Media

One of the paradoxes is that Freedom of the Media to which our Founding Fathers were greatly attached finds no mention in Part III of our Constitution which guarantees certain fundamental rights. There is no specific guarantee of Freedom of the Media as in the Constitutions of other countries.

In the course of the Constituent Assembly debates, Dr. B.R. Ambedkar expressed the same view, and thought that “no special mention is necessary of the Freedom of the Media at all”. This view has been vindicated by the Supreme Court of India. In a series of decisions from 1950 onwards the Supreme Court has ruled that Freedom of the Media is implicit in the guarantee of freedom of speech and expression in Article 19(1)(a) of the Constitution. Thus Freedom of the Media by judicial interpretation has been accorded the constitutional status of a fundamental right. However there is a strong body of opinion which favours specific mention of Freedom of the Media as a fundamental right.

The fundamental right guaranteed is not merely the individual right of the proprietor of the newspaper, or the editor or the journalist. It includes within its capacious content the collective right of the community, the right of citizens to read and to be informed, to impart and receive information. In substance, it is right of the people to know.

When we are speaking about the Freedom of the Media it must be remembered that freedom of expression and Freedom of the Media are not absolute and unlimited. Under our constitutional scheme Freedom of the Media also can be restricted provided three distinct and independent prerequisites are satisfied. The restriction imposed must have the authority of law to support it. The law must fall squarely within one or more heads of restrictions specified in Article 19(2), namely,

a)      Security of the State

b)      Sovereignty and integrity of India

c)      Friendly relations with foreign States

d)       Public order

e)      Decency or morality

f)       Contempt of court

g)      Defamation

h)      Incitement to an offence.

 

The restriction must be reasonable.

One of the permissible heads of restrictions is defamation. In our country there can be criminal prosecution for defamation with imprisonment up to two years and fine. There is also the civil remedy for damages for defamation. The possibility of criminal prosecution and imposition of heavy damages in civil suits against the press can have a chilling effect which can at times be freezing. Thus the potentiality of clash between Freedom of the Media and laws or measures protecting reputation which is the purpose of the law of defamation is inevitable. This is a real problem.

The constitutional guarantee of free speech and Freedom of the Press does not confer a fundamental right to defame persons and harm their reputations by false and baseless allegations and by innuendoes and insinuations. The Press enjoys no talismanic immunity from legal proceedings when it has indulged in malicious falsehoods. A person’s right to good name and honor is also a basic human right.

Defamation

Salmond define the wrong of defamation as publication of a defamatory statement about a person without any lawful justification. Blackburn and George define tort of defamation as publication of a statement which brings down reputation of a person before the right thinking members of the society generally. The word “to bring down reputation of a person before the right thinking members of the society generally” is taken from the test suggested by Lord Atkin.

The difference between libel and slander

As mentioned above, libel is tends to be in permanent form whereas slander is spoken words. Legislation has made clear that TV broadcasts or theatre plays are to be treated as libel. For other methods of communication it is necessary to consult the common law which applies a test of permanence or transience of the statement.

In Monson vTussauds, the court had to decide whether a wax statue was capable of being libel. The court hold that it was, the court said that anything which has a permanent of lasting form can be libel including an effigy or chalk marks on a wall. Lopes, J. said that libel need not be always written and can be of any other permanent form.

Another important distinction is that libel is actionable per se, which means without any proof of damage. Whereas slander, like most areas of law, requires proof of some injury before a lawsuit can be brought.

 

What kind of injury can be shown?

Mere damage to reputation is insufficient, so is the loss of friends (though losing out on the hospitality of friends may be sufficient). Something like loss of a job or reduced business profits would be sufficient.

As an aside, the requirement of damage has often been criticized. It is not clear why libel should be more easily actionable. It is true that words in permanent form, such as book, have more potential to reach large numbers of people than simply spoken words, but this may not necessarily be the case where someone is making a speech to large groups of people.

There are, however, some types of slander actionable per se:

• Imputation of criminal conduct – Where a Defendant accuses the Claimant of criminal conduct which is punishable by imprisonment; there is no need for proof of damage. However, words which express suspicion will not be actionable per se.

• Imputation of a contagious disease – This rule is largely outdated but would have had significance during the periods where serious diseases were rampant. Clearly an imputation that someone has a disease can lead to job loss or social exclusion. This exception would be applicable today for something like HIV/AIDS.

• Imputation of unchastity – This applies to the imputation of adultery or unchastity to a woman or girl or even homosexual is actionable per se. The imputation of unchastity was introduced throughout England by Slander of Women Act 1891.  There is no version for men.

• Imputation in unfitness to run a business – It used to be the case that the exception only applied to comments directed at specific professional tasks, thus accusing the boss of an affair with the caretaker would not be under this exception. It would have been if they were accused of an affair with an employee as that affects how they do their job. Now, however, the exception is much broader and applies to the whole job generally.

Requirements to Take Defamation Action

1.      The Statement must be Defamatory

The first requirement for a defamation action is that the statement is defamatory. A defamatory comment is one that injures a person’s reputation. The basic test is from Partimerv. Coupland“[Was the statement] calculated to injure the reputation of another by exposing him to hatred, contempt or ridicule.”

It does not matter if the statement is not believed in fact by the people they are published to, but it does matter if no reasonable person would believe them, in which case they are not actionable. The statement must be assessed in its context and regard must be had to the characteristics of the Claimant. In Monson v. Tussuads, a wax statue of the Claimant had been placed in the same room as some murders next to the Chamber of Horrors. The Claimant had been tried for murder but a verdict of ‘not proven’ was entered and he was successful in his claim.

Defamation must go beyond mere insults and strike at the claimant’s reputation. Insults and jokes may hurt people and even be the cause of a civil action in employment law i.e. between employees, but discourtesy and insults are not on the same level as defamation. Defamation is one of the only areas of civil law to retain a jury, and it would be for the jury to decide whether the words were defamatory.

2.      The Statement Must Refer to the Claimant

The Claimant doesn’t have to be identified by name but as long as a reasonable inference can be made this criterion is satisfied.

However, it is important to remember that the question is not who the publisher intended to hit, but who they actually hit. Thus in Hulton v Jones, Artemus Jones was a barrister who brought an action against the defendants in respect of a newspaper article which allegedly referred to him. The article referred to a man called Artemus Jones who worked as a warden and alleged that he had behaved immorally during a motor festival. The Claimant had contributed pieces to the newspaper before. The Defendants argued that they had never intended the ‘real’ Artemus Jones but instead had created a fictional character and given it a fancy name. The Defendants lost at trial, in the Court of Appeal and in the House of Lords. This case has been called ‘the most famous case in the law of libel’ and has been heavily criticized. Arguably it is quite unfair to the newspaper. At the same time, however, it is not open to anyone with the same name to sue. Rather the jury must reasonably believe that the person in the statement is the Claimant. It will be hard to convince them when the Claimant has no connection at all with any of the facts.

However, in Morgan v.Odhams Press, the court said that ordinary members of the public do not read a newspaper article surgically, as a lawyer would, but simply skim over it. Thus if a person would think the article was referring to the Claimant after a brief skim then that will be sufficient, even if upon a close reading it is clear that it did not refer to the Claimant. However, what often happen in cases where the evidence against the Defendant isn’t strong is that the jury will find the Defendant liable but only give nominal damages.

In cases where there the article accidentally refers to an unintended person, the publisher can make an offer of amends. This is situations where the Defendant neither knew nor had reason to suspect that the statement referred to the claimant or was likely to be understood as referring to the claimant. The offer of amends requires the Defendant to publish an apology and offer to pay compensation.

3.      The Statement must be published

In defamation, ‘publish’ does not have its ordinary definition meaning the printing of words in a book or leaflet. Publishing, here, means communicating the defamatory statement to a third party, whether that is in a conversation or the people at home who are watching a television show in which a defamatory comment is made.

A statement can be published in many ways including by omission, such as where you have a duty to clear graffiti from the walls. The one exception is that communication to the Defendant’s spouse is not publication but communication to the Claimant’s spouse may be.

In Theaker v. Richardson, a husband opened a letter which defamed his wife. It was held that the defamation had been published to the husband as it natural and probable that the husband would open it.

A particular problem for the courts is not the first communication by the Defendant himself but any subsequent communication. Every repetition of a defamatory statement gives rise to a new cause of action against the Defendant provided it was foreseeable the document would be passed on.

In Slipper v BBC, the Claimant was a retired police officer was the subject of a film about trying to capture some men who had committed the Great Train Robbery. The Claimant alleged that the film showed him as a complete idiot. The film had been shown to some journalists before its release to the public and those journalists had published reviews contained the defamatory sting of the film i.e. that he was an incompetent police officer. The Claimant sued not only for the release to the public but the repetitions in the journalists’ reviews. The defendants argued that the repetitions are only actionable where the defendant has authorized them. The court rejected this argument and said that the Defendant can be liable for any re-publication of the defamatory material as long as it was reasonably foreseeable.

The rule of re-publications is stricter in respect of publication on the internet. Every time an internet user accesses an article on a website there is a fresh publication. In Loutchanksyv. Times Newspapers, the defendant argued that the court should adopt a single publication rule as in some US states where an article put online is published once regarding of many times it is accessed. The court rejected this though accepted that the rule may be disproportionate and was somewhat at odds with the 12 limitation period for defamation.

Times Global Broadcasting Co. Ltd. and anr.v. ParshuramBabaramSawant2011(113)BomLR3801

 

The progress of the case, Times Global Broadcasting Co. Ltd. and anr.v.ParshuramBabaramSawantwas watched closely by all news media, politicians, celebrities and other targets of alleged defamation. The verdict of this case is expected to change the face of media reporting forever and also verdicts in pending defamation cases. The verdict of this case was applauded as well as criticized by different sections of judiciary and media. Some argued that this will make media and press more responsible in their reporting while other said that this will discourage media reporting as verdict was too harsh on the defendant. The verdict of this case is also expected to encourage more number of people to file defamation case for damages. Also, some critics of this case expressed their concern because they felt that the verdict was partial because the plaintiff belongs to the legal fraternity and wondered if same damage would have been awarded if the plaintiff would have belonged to some other section of the society.

Facts of the case:

  • The plaintiff has stated that, he is the former judge of Supreme Court, former chairman of the Press Council of India, the former president of the World Association of Press Councils.
  • The defendant no. 1 is a duly incorporated company in the business of news reporting and broadcasting. It belongs to well known “Times Group”. It runs a news channel by the name “Times Now”.
  • The defendant no. 2 is the employee of defendant no. 1 and is the Editor in chief of the said News Channel and as such responsible for all its publication.
  • On 10.9.2008, while the News relating to Provident Fund scam was being telecast by the said channel, a photograph of the plaintiff was flashed as that of Justice P.K. Samantha (an accused in the said scam).
  • The said flashing of photograph created false impression amongst all the viewers in India and abroad that plaintiff was involved in PF Scam which is per se highly defamatory.
  • The said channel stopped publishing the photograph of the plaintiff when the mistake was brought to their notice.

Proceedings before the trial court:

  • The plaintiff filed a suit against the defendant stating that the defendant took belated action which cannot undo the wrong committed.

Questions before the trial court

  • Was the telecast defamatory per se of the plaintiff?
  • Whether the plaintiff is entitled for the damages?

Arguments of the respondent:

  • The defendants argued that the photograph of the plaintiff was only flashed only once for a short duration. It was without malice and without any intention.
  • The defendants have corrected the mistake by withdrawing it from all subsequent news on the channel. Therefore, the act of the defendants was quick and therefore denied carrying any defamation.
  • The defendants have submitted that they have not received any queries from the public.
  • The claim with regard to compensation is baseless and therefore is liable to be dismissed.

Decision of the trial court

  • The court gave decision in the favour of the plaintiff.
  • The court held that:
  • In the light of broadcasting of photo of the plaintiff, according to him, the act of the plaintiff is nothing but a tort for which the plaintiff defamed in the society.
  • The plaintiff is entitled to damage for Rs.100 Crores.

Question before the high court

  • Whether the trial court is correct in its finding?
  • Whether the damages awarded to the plaintiff viable or not?

Decision of the high court

  • The high court gave decision in the favour of the plaintiff.
  • The court asked the defendant to deposit the damage amount to the bank as directed by the court.

 

 

Truth as defence for contempt of court

AN INTRODUCTION TO CONTEMPT OF COURT

“Satyameva jayate”(may truth be victorious) is the sublime national motto, And yet every political or judicial philosophy, to the contrary is bete noire. In India, truth cannot be used as a defence in contempt of Court cases even though the Constitution holds truth as paramount. Despite many discourses and commissions recommending allowing truth as a defence in view of public interest, the legislators have remained silent and the Contempt of Courts Act, 1971 has remained unchanged.

The Contempt of Courts Act, 1971 basically separates contempt of Court into 2 categories, namely, Civil Contempt (ex facie curiae) and Criminal Contempt (in facie curiae).

Civil contempt occurs when a person disobeys a Court order and is subject to sanctions, such as a fine or imprisonment. The purpose of civil contempt is not only to enforce the law, but also to maintain public confidence in the judicial system, since the administration of justice would be undermined if the order of any Court of law could be disregarded with impunity.

Criminal contempt is when there is interference with or disruption of criminal or civil proceedings. Examples include yelling in the Courtroom, publishing matters which may prejudice the right to a fair trial (“trial by media”), or criticisms of courts or judges, which may undermine public confidence in the judicial system (“scandalizing the Court”).

Judges often use criminal contempt, indiscriminately at times against persons of the media who print matter about the judicial system’s workings and judges holding constitutionally high positions and corruption within the judiciary. This brings us to the issues that go along with contempt of Court. They are

• Does criminal contempt tread on the toes of Freedom of Press?

• Does it impinge upon the Freedom of Expression?

• Is there scope for misuse in the hands of judges?

 

All these questions lead back to the same question- why cannot truth be used as a defence? We who price truth above all are holding the judiciary above this sublime thought. No one is above the law. Not even the judiciary.

 CRIMINAL CONTEMPT AND FREEDOM OF PRESS

The Press is considered as one of the pillars of democracy. It has always gone hand in hand with the judiciary. The Freedom of the Press is a very important right for the protection of democracy. In the Constitution of the United States of America, Freedom of the Press is a fundamental right guaranteed under the First Amendment. This means that the Press can print anything, as long as it is not untrue and defamatory, thus making criminal contempt a difficult thing to prove.

This is not an exclusive right under the Constitution of India, but it may be taken as a right falling under the Freedom of Speech and Expression under Article 19(1)(a).

This makes us wonder again why Freedom of the Press has not been made a Right under the constitution but is to be understood as an expansion of Article 19(1)(a). The press is a very important tool and is a symbol of freedom. It was during the time of the British that there was curb on free press, by the Vernacular Press Act. Putting a curb on free press is only reverting back to those archaic times.

Even in England, the phrase “scandalizing the Court” has become obsolete. Truth is allowed as a defence in the interest of the public. Since our laws are based closely along the lines of the English law, such a change could also be implemented in India.

Due to the said Act, there has been troubled waters between the judiciary and the press.

In the landmark judgement, Perspective Publications v. State of Maharashtra , the Supreme Court said,

“… No attempt was made before the High Court to substantiate that the facts stated in the article were true or founded on correct data. It may be that truthfullness or factual correctness is a good defence in an action for libel, but in the law of contempt there are hardly any English or Indian cases in which such a defence has been recommended.

In Bathina Ramakrishna Reddy case there was discussion about the bona fides of the person responsible for the publication but that was done to dispose of the contention which had been raised on that point. The words,

“even if good faith can be held to be a defence at all in a proceeding for contempt shows that the cCourtdid not lay down affirmatively that good faith can be set up as a defence in contempt proceedings.

The importance of truth as defence in these cases was shown in cases involving Karnataka High Court judges being involved in sex scandals. Several publications reported it, and were held in contempt. It was held that during contempt proceeding, truth is not a defence.

However, apart from cases of contempt, the Supreme Court has always upheld the freedom of the press. A constitutional bench of the Supremem Court is going in to a plea of allowing truth as a defence.

On an appeal, the Supreme Court, then presided by Chief Justice V.N. Khare had openly observed that “truth is a defence”. Justice Khare also stated in open Court proceedings that “truth is a defence but nobody comes forward with the truth.”

CONTEMPT OF COURT AND FREEDOM OF EXPRESSION 

It is generally felt that the existing law relating to criminal contempt is somewhat ambiguous and uncertain, giving major scope for indiscriminate use.

The jurisdiction to punish for contempt touches upon 2 important fundamental rights namely, Right to Personal Liberty and Right to Freedom of Expression. In a democracy such as India, these rights are everything. This country is not a dictatorshop. Therefore, when a right is guarenteed under the Constitution, everything else falls beneath it.

Then how can such liberties be blatantly be taken away by the courts, by saying that “truth is not a defence” as was stated in many many cases.

Many major international and regional human rights instruments on civil and political rights – all protect both freedom of speech and expression and the administration of justice. Freedom of expression is protected in Article 19 of ICCPR as-

Everyone shall have the right to hold opinions without interference.

Everyone shall have the right to freedom of expression; this right shall include freedom to seek, receive and impart information and ideas regardless of frontiers through any media of his choic.

 

It was therefore considered advisable to have the entire law on this subject reviewed by a special committee. In pursuance of this, a committee was\set up in 1961 under the chairmanship of H.N. Sanyal, the then solicitor general. the recommendations made by the committee, in light of the legislation of other countries as well took note of the importance given to freedom of speech given in the constitution and the need for safeguarding the status and dugnity of courts and interests of the administration of justice. The recommendations of the committee have been generally accepted by the state governments, union territory administrations, the Supreme Court, the high courts and the judicial commissioners.

An amending Bill seeks to amend S. 13 of the Act to allow, “justification by truth as a valid defence in any proceedings for contempt of Court.” Once this Bill is passed a person accused of contempt of Court can place on record the truth as a defence- a course the defendant cannot take now. Such an amendment was made in English law, giving the Press the freedom to tell people the truth.

There is a significant tension between the freedom of expression and the administration of justice because of the high public interest in maintaining and protecting both principles.

 

MISUSE OF CRIMINAL CONTEMPT BY THE JUDICIARY. 

The Supreme Court issued notices to Arundathi Roy, Medha Patkar and Prashant Bhushan for criminal contempt following a dharna organized by the Narmada Bachao Andolan outside the Supreme Court on December 13, 2000. The bench comprising Ruma Pal and G.B. Pattnaik J.J., which heard the case concluded that the petition did not contain allegations that the participants in the dharna had picketed the gates of the Court complex preventing lawyers and litigants from entering or leaving the Court complex.

Such allegations, if made and substantiated, could have constituted criminal contempt under sub section 2 (c )(ii) and (iii) of the Act. The bench also agreed that procedurally the petition was deeply flawed and should not have come up before the Court for this reason. But all this did not stop the Supreme Court from issuing a fresh notice for criminal contempt on Arundathi Roy for three paragraphs in her affidavit, sentencing her to a day’s imprisonment and Rs. 2000 as fine.

“It can be said without fear of contradiction that no apex Court in any democracy in the world, governed by the rule of law would have held anyone guilty of contempt of Court for what she said in her affidavit.”

The Court took a contrary view while dealing with Shiv Sena chief Bal Thackeray, against whom it had initiated Court proceedings for his mouthpiece, Samna Thackeray quetioned the right of the judges who were hearing petitions alleging electoral corupt practises by him. He said that it was beyond the jurisdiction of th higest Court to judge his case, and he called muslims names. The Court asked him to apologise. Instead, his lawyr told the Court not to resort to the extreme step of preison, as it would cause national unrest. Later, the Court proceedings were dropped.

Such is the scope for misuse. Yet another flaw, is the fact that the judge in question has the power to sit in the proceedings for contempt himself. This is another serious anomaly that the Constitutional Review Commission (CRC) has asked to do away with.

It has taken a long time for the Union government to brave the resistance of thejudiciary and attempt to amend the anomalous clauses in The Contempt of Courts Act, 1971.

The phrase, “scandalising the Court” has been greatly misusd by the judiciary, as illustrated above. With the amendment, in the government’s eye, it will make the judiciary more accountable.

Justice must be done. It must also be seen to have been done. Thus, higher constitutional obligattions now vestes on these judges to do complete justice which must be seen to have been done, no matter if the members of their own professions are in the thick of the controversies.

Truth is a very important objective. Our very own freedom struggle was based on this concept. Thus, the aim must be to discover the truth, even at the cost of uncovering corruption in the judiciary or causing mass unrest, for no doctrine in the law is above the doctrine of truth.